Midterm #1 (Vocab) Flashcards
1
Q
Law
A
A body of rules of conduct prescribed by controlling authority and having binding
legal force.
2
Q
Common Law
A
As distinguished from the Roman law, the modern civil law, the canon law, and
other systems, the common law is that body of law and juristic theory which was
originated, developed, and formulated and is administered in England, and as
obtained among most of the states and peoples of Anglo‐Saxon stock. (Black’s Law)
3
Q
Action in Equity
A
A civil trial held without a jury when relief sought by the plaintiff is equitable in
nature, such as an injunction, or a divorce or dissolution of a marriage.
4
Q
Federalism
A
A system of government in which the same territory is controlled by two levels of
government. Generally, an overarching national government governs issues that
affect the entire country, and smaller subdivisions govern issues of local concern.
5
Q
The doctrine of stare decisis
A
Latin. “To stand by decided cases; to uphold precedent; to maintain former
adjudications. “
6
Q
Precedent
A
(1) An adjudged case or decision of a court of justice, considered as furnishing an
example or authority for an identical or similar case afterwards arising or a similar
question of law. (2) A draft of a conveyance, settlement, will, pleading, bill, or other
legal instrument, which is considered worthy to serve as a pattern for future
instruments of the same nature. (Black’s Law)
7
Q
Unwritten Law
A
All that portion of the law, observed and administered in the courts, which has not
been enacted or promulgated in tlie form of a statute or or‐dinance, including the
unenacted portions of the common law, general and particular customs having the
tbe force of law, and the rules, principles, and maxims established by judicial
precedents or the successive like decisions of the courts. (Black’s Law)
8
Q
Reporters
A
Where common law from appellate court decisions are published in books in
chronological order.
9
Q
Case Law
A
A professional name for the aggregate or reported cases as forming a body of
jurisprudence; or for the law of a particular subject as evidenced or formed by the
adjudged cases; in distinction to statutes and other sources of law. (Black’s Law)
10
Q
Statutes
A
Laws made by Congress or by State legislatures.
11
Q
Ordinance
A
Written law for Cities and counties. Example: Zoning Ordinance
12
Q
Codes
A
A collection or compendium of laws. A complete system of positive law,
scientifically arranged, and promulgated by legislative authority.
13
Q
Case or controversy
A
A requirement that courts may decide only cases in which an actual conflict
between persons exists.
14
Q
Judicial Activists
A
Judges whose judicial philosophy includes treating the law as a vibrant and active
source of rules. When faced with new issues (e.g., social), such judges are likely to
see the Constitution as a flexible document and stare decisis as challengeable
when they believe important social needs must be addressed.
15
Q
Strict Contructionists
A
Judges whose reading of the law narrowly interprets legal words and who
subscribe to interpreting the law consistent with the believed meaning given it by
drafters.
16
Q
Dicta
A
Latin. “Remarks.” Any part of a court opinion that is unnecessary to the resolution
of dispute before the court. Such digression by a judge is not binding on later
courts.
17
Q
Initiative
A
An electoral process for making new statutes or changing the constitution by filing
appropriate formal petitions to be voted on by legislature (and governor) or by the
people. The initiative is not available in all states.
18
Q
Criminal Law
A
That branch or division of law which treats of crimes and their punishments (Black’s Law)
19
Q
Private Law
A
As used in contradistinction to public law, the term means all that part of the law
which is administered between citizen and citizeu, or which is concerned with the
definition, regulation, and enforcement of rights in cases where both the person in
whom the right inheres and the person upon whom the obligation is incident are
private Individuals. (Black’s Law)
20
Q
Public Law
A
The laws that cover administration, constitution and criminal acts. It controls the
actions between the citizens of the state and the state itself. It deals with the
governments operation and structure. (Black’s Law)
21
Q
International Law
A
The term given to the laws governing and determining the rights of independent
nations during war or peace times. (Black’s Law)
22
Q
Procedural Law
A
The technical aspects of a legal system that states the steps that need to be
followed while enforcing criminal or civil law.
23
Q
Substantive Law
A
That part of the law which the courts are established to administer, as opposed to
the rules according to which the substantive law Itself is administered. That part of
the law which creates, defines, and regulates rights, as opposed to adjective or
remedial law, which prescribes the method of enforcing rights or obtaining redress
for their invasion. (Black’s Law)
24
Q
Ethics
A
Directives based on one’s ethics and morality. How one lives with others. The
foremost concepts and principles of proper human conduct. Socially, it is the
collective of universal values, treating each human equally, acknowledging human
and natural rights, obeying the law of land, showing health and safety concerns,
caring for natural environment. (Black’s Law)
25
Morals
1. Pertaining or relating to the conscience or moral sense or to the general
principles of right conduct. 2. Cognizable or enforceable only by the conscience or
by the principles of right conduct, as distinguished from positive law. 3. Depending
upon or resulting from probability ; raising a belief or conviction in the mind
independent of strict or logical proof. 4. Involving or affecting the moral sense; as
in the phrase “moral insanity.” (Black's Law)
26
Moral Problem Solving
Conflict‐resolution process aimed at solving conflicts involving moral dilemmas
through communication, education, and negotiation. The broad term describes
interrelational rather than individual process.
27
Code of Ethics
A written set of guidelines of the company's primary worth and ethical standards
given from an organization to its workers and management to guide all involved in
the company's business in their actions. (Black's Law)
28
Moral Reasoning
A rational thought process directed at testing whether action is right or wrong. The
conclusion is a determination of moral responsibility or culpability.
29
Duty-Based Ethics
The doctrine that actions are morally correct if they comply with existing
obligations owed another or ourselves.
30
Untilitarianism
Ethical philosophy where happiness of most people it thought to be the greater good. (Black's Law)
31
Deductive Logic
Deductive logic is a method of logical reasoning from two or more propositions to a
conclusion. Inferences are drawn from a general premise to a specific premise. The
argument is sound if the propositions on which the conclusion is based are true
and if the inferences are valid.
32
Syllogism
Deduction may be understood as a pattern or syllogism. Syllogisms help to organize
thinking so that a valid conclusion is reached. They help to identify incorrect
premises and flawed thinking. Moral reasoning follows the following pattern:
Proposition One (general premise), Proposition Two (specific, factual, or situational
premise), Conclusion (moral determination.)
33
Nonnormative Statements
Statements that reflect no value judgment are objective. They are what is so. These
statements are referred to as positive or nonnormative statements.
34
Normative Statements
Statements that reflect what should be or how one should act are called normative
statements. They tell what someone deems socially acceptable. The statement is
subjective.
35
Culpability
Blamable; censurable; involving the breach of a legal duty or the commission of a
fault. The term is not necessarily equivalent to "criminal," for, in present use, and
notwithstanding its derivation, it implies that the act or conduct spoken of Is
reprehensible or wrong but not that it Involves malice or a guilty purpose.
"Culpable" in fact connotes fault rather than guilt. (Black's Law)
36
Legal Citation
Abbreviated reference to a variety of legal authorities, including court cases
37
Unanimous Opinion
When the judges unanimously agree on an opinion, one judge writes the opinion
for the entire court and it is called a unanimous opinion; this opinion is binding
precedent..
38
Majority Opinion
When the opinion is not unanimous, a majority opinion is written by one of the
judges. This opinion outlines the views of the majority of the judges deciding the
case; this opinion is binding precedent.
39
Concurring Opinion
Often, a judge who feels strongly about making a point that was not made in the
unanimous or majority opinion will write a concurring opinion. The judge agrees
(concurs) with the judgment given in the unanimous or majority opinion, but for
different reasons; this opinion is not binding precedent but is persuasive
precedent.
40
Dissenting Opinion
If the opinion is not unanimous, a dissenting opinion may be written by a judge
who disagrees with the majority's ruling. The dissenting opinion is important
because it may form the basis of arguments used years later to overrule the
majority opinion; dissenting opinions are not binding precedent but are persuasive
precedent.
41
Appellant or Petitioner
The party who appeals to a higher court for review of a lower court ruling.
42
Appellee or Respondent
The party who, on appeal, defends the earlier court determination.
43
Adversarial System
In an adversarial system, parties to legal actions are opponents. The judge is
independent and neutral, unlike magistrates in so‐called inquisitorial systems.
Courts make decisions based on facts brought to their attention by the proponents
and opponents in the legal conflict. Each party is responsible for producing
evidence and rules of law that supports its contentions. The competitors openly
are biased and partial to their respective sides. Each party asserts every possible
reason to merit victory. Every theory asserted or discovered is considered and
subject to attack and counterattack. The Judge ensures that procedural rules are
followed.
44
Inquisitiorial System
A legal system used in most countries that allows the judge to investigate, question
witnesses, and seek out evidence before and during trial.
45
Attorney-at-Law
A person licensed to practice law, and usually called a lawyer, attorney, counsel, or
counselor
46
Legal Assistant
Someone with specialized training who assists an attorney. Also called a
"paralegal."
47
Fiduciary Relationship
A relationship between two persons wherein one has an obligation to perform services with scrupulous good faith and honesty.
48
In Propria Persona (In pro se)
Term meaning the person represents herself or himself in a legal action without the appearance of an attorney
49
Contingency Feel
A fixed percentage of the monetary recovery obtained by a lawyer for a client. It is agreed on in advance and accepted in full payment for services rendered; the attorney is only paid if the client actually recovers.
50
Legal Services Corporation (LSC)
A federally funded corporation that distributes federal tax dollars to state programs that provide legal assistance in noncriminal proceedings to person financially unable to afford such services.
51
Pro Bono Publico
When an attorney provides legal services free of charge to poor but worthy clients or causes.
52
Legal Service Plans
Insurance plans designed to make legal services available to members of unions or other organizations, such as business firms.
53
Public Interest Law Firms
A nonprofit law firm that offers assistance in areas such as employment, minority rights, civil rights, political rights, family law and environmental law.
54
Rules of Professional Conduct
Written rules of conduct that are adopted by and binding upon members of a
professional group.
55
Legal Ethics
Rules promulgated by lawyer‐governing bodies to proscribe standards of
professional behavior and regulate lawyer and judicial conduct.
56
Attorney‐Client privilege
The right of clients to keep communications with their attorneys confidential and
free from disclosure.
57
Conflict of Interest
When a client's interests are at odds with another's that the attorney serves, might
serve, or is tempted to serve the other.
58
Public Defender
A lawyer provided by the community for a person who is accused of a serious crime
(felony) and cannot afford to hire counsel.
59
Advance Feed deposit
Fees paid in advance that are held in a trust account to be drawn down (taken) by
the attorney as work progresses.
60
Retainer Fee
A sum of money paid to an attorney for a promise to remain available to the client
for consultation when needed and requested.
61
Class Action Law Suit
When all members of a group of persons who have suffered the same or similar
injury join together in a single lawsuit against the alleged wrongdoer. The group
must be so numerous that it is impracticable to bring all members before the court
individually.
62
Maintenance
Assisting a party to a lawsuit with money or otherwise, to prosecute or defend the
lawsuit
63
Champerty
The doctrine of champerty forbids one from financially participating in the lawsuit
of another. Champerty is an illegal agreement between a litigant and someone who
agrees to finance the litigation in return for a portion of the outcome if the litigant
is successful. Society's concern is that investment in cases by outsiders encourages
gambling and litigation.
64
Legal Malpractice
Violation of a duty of due care by a professional person.
65
Negotiation
Communication between disputing parties for the purpose of persuasion and settlement or resolution.
66
American Arbitration Association (AAA)
A private nonprofit organization with the purpose of providing education, training and administrative assistance to parties who use nonjudicial methods - that is, alternative dispute resolution (ADR)- for resolving disputes.
67
Arbitration
An alternative to litigation whereby conflicting parties select a neutral third party
(for parties) to hear and decide their dispute. Arbitration can be binding or
nonbinding.
68
Award
The final decision of a judge, arbitrator or other nonjudicial officer in the resolution
of a dispute.
69
Court-annexed Arbitration
A type of nonbinding arbitration required by some courts before the parties may
proceed to trial.
70
Med-arb
An alternative dispute resolution (ADR) process that combines mediation and
arbitration.
71
Private Judging
The use of a legally trained arbitrator who follows formal judicial procedures in hearing a case outside court.
72
Ombudsperson or Ombud
An ombudperson or ombud is a consultant or permanent employee of an
organization hired to resolve conflicts that arise within the organization.
73
Expert Fact-Finding
A process by which a neutral party with subject‐matter expertise is appointed to
conduct an independent investigation or take evidence on selected factual issues in
highly technical matters
74
Early Neutral Evaluation
objective of the process is to facilitate negotiations, not to decide the case. A
neutral third party conducts a hearing and issues an opinion as to the merits of the
case and the strengths and weaknesses of evidence and assesses the likely
75
Mini-Trial
A private, voluntary informal form of dispute resolution in which attorneys for each
disputant make a brief presentation of their best case before officials for each side
who have authority to settle.
76
Summary Jury Trial
A nonbinding alternative dispute resolution (ADR) process in which parties present
their cases to a private mock jury, which then gives the parties an advisory verdict.
77
Mock Jury
A panel of lay citizens selected and paid to mirror the role of an actual jury.
78
Collaborative Law Practice
A method whereby the parties agree to resolve disputes without court intervention
using interest‐based negotiation practices.
79
Partnering
A team‐ building process designed to improve contract performance and reduce or
eliminate contract litigation through common understanding of goals and
improved communication. The process is used in large, complicated, and expensive
contracts and has its roots in the construction industry.
80
Commerce Clause
Article I, Section 8 of the Constitution: " The Congress shall have Power… To
regulate Commerce with foreign Nations, and among the several States…."
Interpreted to give Congress the power to enact most of the federal regulation of
business by tying it to interstate commerce.
81
The Necessary and Proper Clause
Clause 18 of Article I, Section 8, gives Congress power "to make all Laws which shall
be necessary and proper for carrying in to Execution the foregoing Powers and all
other Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof."
82
Supremacy Clause
Article VI, Paragraph 2, "The Constitution, and the Laws of the United States… shall
be the supreme Law of the Land; and the judges in every State shall be bound
thereby…."; states that federal laws are supreme over state laws
83
Interstate Commerce
Business that concerns more than one state. 3 types of interstate commerce: (1)
channels of interstate commerce (e.g. roads, waterways), (2) persons or things in
interstate commerce, (3) activities having a substantial effect on interstate
commerce.
84
Political Speech
Example case: Citizens United v. Federal Election Commission (130 S.Ct. 876)‐the
court struck down portions of federal law, the McCain‐Feingold Act. The Act
prohibited for‐profit and nonprofit corporations and unions from broadcasting "
electioneering communication." That was defined as any communication that
mentioned a candidate for office within 60 days of a general election or 30 days of
a primary election.
85
Commercial Speech
Commercial speech doctrine first came about as restrictions on advertising were
attacked as anticompetitive. Example Case: Central Hudson Gas and Electric
decision, the Court established a four‐part test that must be met to justify
restrictions on commercial speech.
86
Exclusionary Rule
Evidence improperly gathered by law enforcement officials violates 4th
Amendment rights regarding search and seizure and may not be used in court
under the exclusionary rule.
87
Self-Incrimination
5th Amendment protects individuals against self‐incrimination: "No person shall be
… compelled in any criminal case to be a witness against himself." This protection
applies to persons, not to corporations. Although, corporate executives cannot be
made to testify against themselves, business records that might incriminate the
corporation and the executives must be produced since the 5th Amendment does
not protect such records.
88
Just Compensation
5th Amendment also states, "… nor shall private property be taken for public use,
without just compensation." Termed the just compensation or takings clause, it
requires governments to pay for property when a government requires an owner
to sell because public officials determined that the property should be used for
some public purpose, such as or the construction of a highway, school, or military
base. Compensates a person for property taken through the power of eminent
domain.
89
Eminent Domain
Eminent domain is the right of the people or government to take private property
for public use. (Black's Law)
90
Regulatroy Takings
Regulatory takings cases indicate that the destruction of property value must be
almost complete for compensation to be due. If a regulation, such as a decision by
a government to build a garbage dump next to a house, reduces the value of
property by, say, 60 percent, it is very unlikely that compensation is due. That is
not an uncommon result of a change in zoning laws or rule that eliminates the
ability of a company to produce a particular product or for certain residential
property to be desirable.
91
Excessive Fines
8th Amendment holds that no excessive fines may be imposed by the court or
government.
92
Due Process Clause
(1) 5th Amendment right stating that "[N]or person…shall be deprived of life,
liberty, or property without due process of law." (2) 14th Amendment right stating
that "[N]or shall any State deprive any person of life, liberty, or property without
due process of law." Both of these amendments serve as safeguards against
arbitrary denial of life, liberty or property; the 5th protects against the federal
government and 14th against state governments.
93
Equal Protection Clause
14th Amendment: "[N]or [shall any state] deny to any person within its jurisdiction
the equal protection of the laws." Courts have also read an equal protection clause
into the 5th Amendment; meaning that although it is not explicitly stated, it is
inherent in the Constitution. Protects against discrimination in the application of
the laws.
94
Rule of Law
Principle that decisions should be made by the application of established laws
without the intervention of individual discretion
95
Bias
A preconceived belief affecting neutrality
96
Court
(a) A government body that administers justice by applying laws to civil
controversies and criminal offenses. (b) The place where trials are held.
97
Trial Court
The initial court that hears evidence and applies the law to decided facts.
98
Plaintiff
In trial, the person trying to recover money damages or other relief from a defendant
99
Damages
Money awarded by a court to a plaintiff for injury or economic loss caused by the
defendant.
100
Defendant
(a) In a civil trial, the person from whom money damages or other relief is sought
by the plaintiff (b) In a criminal trial, the accused.
101
Lawsuit or Litigation
A court process at law or in equity to determine the legal merits of a controversy.
102
Civil Dispute
A lawsuit commenced for a purpose of resolving a civil conflict.
103
Kangaroo Court
A farce trial ‐ one that lacks proper procedure and fairness and where the outcome
is predetermined. Origin of the term is thought to be the bizarre appearance of the
animal after which it is named.
104
Appeal
Formal request to a higher court to review any action of a lower court
105
Appellate Court
Court that reviews decisions of prior courts for substantive and procedural
correctness.
106
Briefs
Court that reviews decisions of prior courts for substantive and procedural
correctness.
107
Jurisdiction
The power of a court to decide a controversy and to award appropriate relief.
108
Concurrent Jurisdiction
Power of more than one court to hear a case.
109
Subject Matter
The power of a court to hear and decide cases of the general type to which the
subject in question belongs.
110
Limited Jurisdiction
Limitation on a court as to the types of cases it can hear and decide.
111
General Jurisdiction
Authorization of a court to hear and decide virtually any type of case occurring
within the political boundaries of the geographic area in which it is located.
112
Venue
The local place, within the geographic boundaries of a larger jurisdiction, where a
case is generally most appropriately tried.
113
Motion for Change of Venue
Request to a judge by counsel to transfer the trial to a different geographic location
within the jurisdiction of the court.
114
In personam jurisdiction
The power of a court over a person
115
Long-arm Statute
A state law authorizing a court to hear cases brought against nonresidents under
specified circumstances.
116
In rem jurisdiction
The power of a court to declare rights against the world rather than solely against
the named defendant(s)
117
Small Claims Court
A court with jurisdiction to decide civil controversies of a relatively minor nature.
118
Trial de Novo
A court with jurisdiction to decide civil controversies of a relatively minor nature.
119
Diversity of citizenship
A basis of jurisdiction in federal courts requiring that plaintiff and defendant be
involved in an actual controversy, that they be citizens of different states, and that
a minimum of $75,000 be sough in damages.
120
Exclusive Jurisdiction
The sole power a court has over the particular subject matter of a case.
121
Writ of Certiorari
A procedural document whereby an appellate court exercises its discretionary
power to accept jurisdiction of a pending case.
122
Complaint
A document stating the facts constituting an alleged cause of action.
123
Cause of action
An existing right to seek and to receive judicial relief, assuming the factual
allegations of the plaintiff are true.
124
Summons
A document issued by a clerk of the court inviting the defendant to respond to a
complaint
125
Process Server
A person who serves (delivers) a copy of the summons and complaint, or other
legal document, upon a party or witness at the request of the opposing party to
civil litigation.
126
Answer
A document containing defendant's denials, admissions or allegations of fact in
response to a complaint.
127
Pleadings
The complaint of the plaintiff and answer of the defendant in a lawsuit.
128
Demurrer or motion to dismiss
A motion filled by a defendant in response to a summons and complaint alleging
the complaint, even if true, is insufficient to state a cause of action
129
Motion
A formal request by counsel addressed to a court or other tribunal for a particular decision or act.
130
Sustained
Agreement by the judge with request by an attorney-at-law.
131
Statute of Limitations
A statute that bars civil or criminal proceedings unless brought within a specified
period of time after the act occurred.
132
Default Judgment
Court‐awarded judgment based on the defendant's failure to answer the summons
and complaint or to appear at the trial to contest the claim of the plaintiff.
133
Ex parte trial
A legal action in which only one side of the dispute is heard.
134
Accusation
Formal commencement of a criminal case by a specified public official such a s a district attorney or by a grand jury.
135
Information
An accusation of a criminal offense issued following a preliminary hearing.
136
Grand Jury
An appointed body of citizens formed both to investigate the operations of
government and to issue indictments against persons suspected of criminal
conduct.
137
Indictment
An accusation of felony filled by a grand jury.
138
Alternative dispute resolution
Any of various methods of resolving disputes through means other than the judicial
process.
139
Discovery
Group of methods used during the period between commencement of a lawsuit
and the date of trial to learn facts about the dispute.
140
Deposition
Questioning of witness or adverse party to an action, under oath, by the opposing
attorney before the trial.
141
Interrogatories
A form of discovery consisting of written questions directed to a party or witness
who is expected to reply with written answers under oath.
142
Impeach
To discredit, dispute, disparage, or contradict a witness's testimony.
143
Subpoena
An order directing a person to appear at a certain time and place for the purpose of
giving testimony as a witness.
144
Subpoena duces tecum
An order to produce specified documents or physical evidence in court.
145
Motion for Summary Judgment
Request to judge by counsel to award judgment because there are no significant questions of fact in the lawsuit.
146
Pretrial hearing or confrence
Hearing occurring before the trial.
147
Jury
A group of men and women sworn to declare the truth based on evidence presented to them.
148
Plea bargain
A binding agreement in which an accused agrees to plead guilty if the court agrees
to a specified charge and punishment in advance.
149
Questions of Fact
Circumstances or matters surrounding and involved in a case that is being tried by
a court.
150
Trier of Fact
Jury or judge acting as the finder or issues of fact.
151
Questions of law
Principles and rules of human conduct determined by the judge to be applicable in
a case being tried by a court.
152
Jury nullification
The power of jury in a criminal trial to disregard the law and unanimously find the
defendant innocent, although there is ample evidence to support a verdict of
guilty.
153
Voir dire
Process of questioning prospective jurors to ascertain whether they have any bias
that would make difficult or unlikely their impartiality in determining questions of
fact during a trial.
154
Challenge for cause
Ability to exclude a prospective trial juror if bias or prejudice is indicated.
155
Peremptory Challenge
Ability to exclude a prospective juror for any reason other than race or gender.
156
Specific Performance
An equitable remedy allowing a buyer to get possession and title to real property
and to goods that are unique when the seller refuses to deliver under a valid sales
contract.
157
Recission
An equitable remedy that annuls a contract and returns the parties to the
relationship they had before the contract was made.
158
Injunction
An order from a court of equity to do or not do an act.
159
Contempt of court
Willflul defiance of the authority of a court, affront to its dignity, or willful disobedience of its lawful orders.
160
Burden of Proof
The duty to produce evidence as a trial progresses.
161
Preponderance of evidence
Standard of determining civil liability, that the weight of the evidence offered to
prove a matter is more probable than not.
162
Beyond a reasonable doubt
The quantum evidence that fully satisfies and entirely convinces that jury in a
criminal trial that the defendant is guilty as charge.
163
Double Jeopardy
A second criminal prosecution against a person for the same single offense, after
the person has been found innocent of the crime in the prior trial.
164
Opening Statement
Summaries by counsel of plaintiff and of defendant indication what they expect to
prove in the ensuing trial.
165
Case-in-chief
The case presented by each party in a trial
166
Evidence
Everything presented by disputing parties and witnesses that the "finder of fact" is
entitled to consider in arriving at a determination of the facts.
167
Relevant Evidence
Evidence that is related to the facts of the dispute
168
Irrelevant Evidence
Evidence that does not relate to or have a bearing upon a question of fact in
dispute during a trial.
169
Expert Witness
Anyone qualified by knowledge and skill, experience, training, or education to offer
a credible and useful opinion upon some material issue in a trial.
170
Prima facie
Latin: "on first appearance" Term describing facts legally sufficient to establish a
fact or a case unless disproved by some contrary evidence.
171
Motion for a directed verdict
Request to a judge by counsel to enter a particular verdict instead of allowing the
jury to do so because there are insufficient facts to allow any other verdict.
172
Jury instructions
Rules of law and charges provided by the judge to the jury for guidance in reaching
a verdict.
173
Deliberate
The review, discussion, and weighing of evidence presented at a trial by jury.
174
Verdict
The expressed decision of the jury on questions of fact submitted to it for
determination, based on evidence presented during the trial.
175
Judgment non obstante verdicto
A decision by a judge that overrules the verdict of the jury
176
Judgment
The final determination or decision of the court as to the rights and duties
177
Judgment debtor
A person against whom a judgment for payment of money has been entered but
who has not yet made or completed that payment.
178
Judgment creditor
A person who has won a judgment but has not been fully paid.
179
Writ of execution
A person who has won a judgment but has not been fully paid.
180
Garnishment
A legal proceeding in which a plaintiff‐creditor gets a court order compelling a third
party to pay monies earned by the defendant to the plaintiff.
181
Order of examination
A judicial authorized inquiry as to the assets of a judgment debtor
182
Affirm
The confirmation of a lower court's judgment or order because the prior decision is deemed to be correct and free from prejudicial error.
183
Reverse
Appellate court sets aside the decision of a lower court.
184
Modify
Appellate court alters the decision of a lower court.
185
Remand
Appellate court sends case back to a lower court to take some further action.
186
Administrative Law
Administrative law consists of rules, regulations, orders, and adjudications. Also,
the composite body of substantive law created by the various administrative
agencies in the performance of there assigned tasks.
187
Regulations
Rules promulgated by an administrative agency under authority given to the
agency by the enabling statute.
188
Administrative Agency
Collectively, sub‐branches of the executive branch of federal, state, and local
governments. Administrative agencies may possess legislative, executive, and
judicial powers in specialized technical areas where appropriate regulation requires
action by experts.
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Executive Departments
Generally, administrative bodies headed by single persons ultimately answerable
to one person, the chief executive.
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Independent Administrative Agency
An administrative body empowered to regulate some policy area lead by officials
who cannot be dismissed by the president of the United States except for good
cause.
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Deregulation
A process of eliminating, reducing, or restructuring the regulation of an industry.
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Enabling Statute
A statute that creates and administrative agency and typically also authorizes it to
perform specified actions.
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Administrative Procedure Act (APA) of 1946
Law that mandates procedures for federal administrative agencies
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Regulations and Rulemaking
Notice, Public comments, Publishing of the regulation, Response to comments,
Written record.
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Negotiated Rulemaking
A process to bring together representatives of a rulemaking agency and stake
holders to jointly prepare the text of a proposed rule in a consensus‐seeking
negotiation before the agency formally submits the rule to the rulemaking process.
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Subpoena
An order directing a person to appear at a certain time and place for the purpose of
giving testimony as a witness.
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Administrative Law Judge (ALJ)
A government employee appointed to hear and decide matters in administrative
agency hearings.
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Cease-and-desist
A command from an administrative agency that the subject party refrain from
specified activities.
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Freedom of Information Act (FOIA)
A federal law requiring the federal government to disclose most public records to
any person on request.
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Government in the Sunshine Act
A federal law requiring that most meeting of federal agencies be open for public
observation and that advance notice be given of agency meetings, listing the
expected topics of discussion.
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Regulatory Flexibility Act
Federal law requiring federal agencies to consider the effects of their regulatory
actions on small businesses and other small entities and to minimize any undue
disproportionate burden.
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De novo review
A complete reevaluation of an issue, finding, or case as if the original decision had never been made.
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Standing to sue
A person's right or capacity to bring a lawsuit because he or she has a legally protected interest at stake in the litigation.
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Exhaustion of Rememdies
A doctrine requiring that a person attempt all available options within and administrative agency before taking a claim to a court.
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Intellectual Property
Also known as Intangible property and considered to be more valuable than real
property.
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Intangible Property
Invisible, impossible to hold, and harder to value than the physical property
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Infringement
Wrongful unauthorized use of intellectual property in violation of the owner's
rights is the basis for a tort action
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Trademark
A commercial symbol ‐ a design, logo, phrase, distinctive mark, name, or word ‐
that a manufacturer puts on its goods so they can be readily identified in the
market‐place.
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Lanham Act
Federal trademark law that allows trademarks to be registered if they are distinctive and nonfunctional.
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Arbitrary and fanciful mark
Favored by the courts because they are inherently distinctive (fanciful), such as
made up names Exxon or Reebok, or they are names not related to the product
(arbitrary), such as Captain Morgan for rum and Apple for computers.
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Suggestive Mark
Suggestive marks hint at the product, such as Chicken of the Sea for canned tuna.
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Descriptive mark
Descriptive marks are not as favored by the law and must be shown to have
acquired customer recognition to be allowed protection.
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Generic Mark
specific producer. Some words that were once trademarks have become generic
or unprotected marks, for example, thermos for vacuum‐insulated bottles, aspiring
for acetylsalicylic acid.
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Dilution
guitars under the name Nike guitars, that would be dilution. No one would think
the guitars to be Nike athletic wear, but they may presume Nike has gotten into
guitar business, thereby diluting the strength of the Nike mark.
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Cybersquatting
Occurs when a trademark is used improperly in a domain name.
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Counterfeiting
The copying or imitating of a mark without authority to do so. It usually means
passing off goods as if they were original.
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Trade Dress
Trade dress concerns the "look and feel" of products and of service establishments.
This includes the size, color, shape, texture, graphics, and even certain sales
techniques of products.
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Secondary meaning
Trade dress must be distinctive and must have second meaning. The primary
significance of trade dress is to identify the source of the product, rather than the
product itself; it is not functional.
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Service Mark
Service marks applies to services such advertising, insurance, hotels, restaurants,
and entertainment. For example Burger King is a trademark.
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Certification mark
A certification mark is any word, symbol, devise, or any combination of these that
is used, or intended to be used, in commerce to certify regional or other
geographic origin ("Made in Montana")It may also signify the type of material used,
mode of manufacture, quality, accuracy, or other characteristics of someone's
goods or services.
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Collective Mark
A trademark or service mark that is used in commerce by members of a
cooperative, an association, or other collective group or organization is a collective
mark.
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Trade Name
Cola, have the same trademark as the trade name of their producer. Trade names
cannot be registered under the Lanham Act, but they are protected by the
common law.
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Goodwill
It is the reputation of the firm that give value to trademarks and other such forms
of intellectual property. This is a prized asset of many firms. The trademarks Coke
and Coca‐Cola are far more valuable assets than the physical property owned by
the Coca‐Cola Co. When firms have created such value, and have gained the trust
of many customers, it is called goodwill.
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Copyright
Copyrights are rights of literary property as recognized by law. They are intangible assets that are held by the author or owner for a certain time period.
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Moral Right
The right of the author to have proper attribution of authorship and to prevent
unauthorized changes in or destruction of an artist's work.
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Fair Use
The Copyright Act allows use of original material " for purposes such as criticism,
comment, news reporting, teaching, scholarship, or research."
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Patent
A patent is a grant from the government to an inventor for "the right to exclude
others from making, using, offering for sale, or selling" the invention for 20 years
after the inventor files a patent application.
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Utility Patent
Most patents are utility patents. For something to be useful means the invention must have a use and be operative; patents are not given for theories.
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Trade Secrets
Coca‐Cola has kept a valuable secret ‐ the formula for Coke‐ for more than 100
years. Business have many trade secrets, and tort law protects such information.
Information is a trade secret if: (1) It is not known by the competition. (2) The
business would lose its advantage if the competition were to obtain it. (3) The
owner has taken reasonable steps to protect the secret from disclosure.
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Economic Espionage
The Economic Espionage Act of 1996 contains a provision concerning theft of
commercial trade secrets, that is, economic espionage. "Whoever with intent to
convert a trade secret that is related to or included in a product that is produced
for or placed in interstate or foreign commerce to the economic benefit of anyone
other than the owner thereof, and intending or knowing that the offense will injure
any owner of that trade secret."
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Gibbons v. Ogden, 22 U.S. 1 (1824)
Shipping Canals between NY & NJ
Exclusive Navigation Privileges Granted by NY
Licensed to individuals, But p'ship Collapsed
Kept Sailing
Can NY Grant Exclusive rights?
Waterways are channels of interstate commerce
CONGRESS MAY REGULATE
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Wickard V. Filburn, 317 U.S. 111 (1942)
Filburn Grew Wheat on Farm to Feed Chickens, Cows & Family
Grew more wheat than allowed
Filburn was fined
Impact on interstate commerce of home consumed wheat.
Subject to Commerce Clause ( Influences market price and condition)
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Katzenbach v. McClung (1964)
Ollie's Barbecue Refused Service of Black Customers at tables in Birmingham, AL (only takeout window)
Connection to interstate commerce? Half the food purchased originated from out-of- state supplier
Court found a creative way to implement the new civil rights act of 1964
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Gonzalez v. Raich (2005)
California Prop 215 legalized Medical Marijuana
Controlled Substances Act
DEA Destroyed Homegrown Medical Marijuana Plants
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Hughes v. Oklahoma (1979)
Minnows in OK, limited interstate commerce too much and unnecessarily.
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16th Ammendment
Gave federal government power to impose income tax
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1st Ammendment
Free speech, freedom of association, freedom of religion, freedom of the press.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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2nd Ammendment
Right to bear arms
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
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14th Ammendment
1868 Post civil war
| Due process clause
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5th Ammendment
Grand Jury
Takings clause
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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10th Ammendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
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16th Ammendment
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
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Goldberg v. Sweet
A state can tax a company if it has a nexus in the state
